## Facts

- Joanne Pollara, a professional artist, was commissioned by the Gideon Coalition to create a large hand-painted banner for a lobbying event at the Empire State Plaza in Albany, New York.
- The banner depicted people waiting before closed doors labeled with legal-service providers and included prominent text protesting budget cuts affecting access to counsel.
- The banner was installed near an information table to draw attention to the Coalition’s presence and message during the event.
- Empire State Plaza officials concluded the display lacked a required permit; Thomas E. Casey arranged for the banner’s removal.
- During removal, the banner was significantly damaged or destroyed.
- Pollara sued under the Visual Artists Rights Act (VARA), alleging intentional damage, mutilation, and destruction of a protected “work of visual art,” including destruction of a work of “recognized stature.”

## Issues

1. Whether the banner qualified as a protected “work of visual art” under VARA or was excluded as “advertising or promotional material.”
2. Whether Pollara was entitled to a jury trial on the VARA claim (raised on appeal but not reached if the work was categorically excluded).

## Decision

- The Second Circuit affirmed judgment for the defendants.
- The court held, as a matter of law, that the banner was excluded from VARA because it constituted “advertising or promotional material.”
- Because the work was not covered by VARA, the court did not decide whether VARA provides a right to a jury trial.
- The court did not need to address whether the banner had “recognized stature” for purposes of a destruction claim.

## Legal Principles

- VARA protects only a narrow class of “works of visual art” as defined by statute, and statutory exclusions are controlling.
- A work created and used primarily to attract attention to, publicize, or advance an organization’s event, cause, or message can fall within the exclusion for “advertising or promotional material.”
- The “advertising or promotional material” exclusion applies regardless of artistic merit or traditional artistic media.
- Promotional material may be excluded even when the promotion is noncommercial, political, or public-interest advocacy.

## Conclusion

The Second Circuit concluded that VARA’s moral-rights protections did not apply because the banner’s primary function was to promote an advocacy effort at a public event, placing it within the statute’s exclusion for advertising or promotional material.


Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003)